Extremism in Action

Posted on Friday, July 11th, 2014

Photo by Brett Duke, NOLA.com The Times-Picayune

In early July, the Louisiana Supreme Court unanimously upheld a state law prohibiting convicted felons from possessing firearms. Despite this positive outcome, the case actually illustrates the very real dangers of an alarming trend that has recently emerged in certain parts of the country.

Challenges to the law arose after a dangerous and imprudent amendment was made to Louisiana’s constitution in 2012, requiring that all challenged state gun laws be subject to “strict scrutiny” review— the highest level of judicial review that exists. The Louisiana Constitution, like many other state constitutions, recognizes a right to keep and bear arms. However, in 2012, voters approved an NRA-supported amendment—the first of its kind approved in the U.S.—defining the right as “fundamental” and requiring courts to apply “strict scrutiny” when reviewing firearm regulations.

Because of this new “strict scrutiny” requirement, three convicted felons were able to challenge their convictions under a Louisiana statute which generally bars felons from possessing a firearm for ten years after the completion of their sentence. The challengers to the law in this case had been convicted of a variety of crimes including second degree battery, narcotics trafficking, and unauthorized entry of an inhabited dwelling.

The question was whether Louisiana may prohibit convicted felons from possessing firearms after serving their sentences. The Louisiana Supreme Court found “beyond question” that this law serves to protect public safety by keeping firearms out of the hands of those who are more likely to misuse them. In the words of the court, the case demonstrated that “convicted felons are not only at risk to re-offend, but are at risk to re-offend using firearms.” In upholding the law, the court concluded that “common sense and the public safety allow no other result.”

Posted on Thursday, March 13th, 2014

(Photo: AP/Houston Chronicle, Johnny Hanson)

A bill that prohibits state colleges and universities from regulating firearms on their campuses was signed by the governor of Idaho yesterday. The governor approved the law despite strong opposition from the Idaho Board of Education, Chief of Police, and the presidents of every Idaho public university, college, and community college. No public colleges or universities in Idaho currently allow guns on their campuses.

Although the law still allows public colleges and universities to regulate guns on campus in some respects, Idaho Senate Bill 1254 prohibits them from banning the carrying of firearms by individuals with an enhanced concealed carry permit. An individual need only obtain an additional eight hours of firearms safety training and fire 98 live rounds to qualify for this enhanced permit. However, because of a incredibly dangerous loophole, these permit holders will be able to carry their firearms openly on campus, which makesIdaho the first state in the country to allow people to openly carry weapons on campus.

People with enhanced permits will still be restricted from carrying a concealed firearm within a student dormitory, residence hall, or public entertainment facility, but this is the only restriction the law places on enhanced permit holders. The law does not prevent enhanced permit holders from carrying their firearms openly in the same places, or anywhere else on campus.

Whether Carried Openly or Concealed, Guns on Campus Increase the Risk of Violence. Allowing guns on campuses has been shown to create a greater risk for both homicide and suicide. The American Association of State Colleges and Universities reports that college-age students experience some of the highest rates of serious mental illness. A Journal of American College Health study demonstrated that between 9% and 11% of college students seriously considered suicide in the previous school year and the U.S. Centers for Disease Control and Prevention states that about 1,100 college students commit suicide each year. Access to guns makes suicide attempts more likely to be fatal– 85% of gun suicide attempts result in death—as illustrated by data from the U.S. Department of Education.

Posted on Thursday, February 20th, 2014

Right now, an outrageous bill is making its way through the Georgia Legislature. House Bill 875 is a particularly extreme example of the gun lobby’s strategy to broaden the laws around guns in public by dramatically expanding the locations where concealed weapons are permitted. House Bill 875 would, among other things, allow concealed weapon permit holders to carry firearms in bars, churches and other houses of worship, parts of airports and courthouses, and make it easier to carry a gun on college and university campuses.

During the floor debate in the House, Republican Representative Chuck Sims said that, as a funeral director, he deals with the tragic aftermath of gun violence. “Guns don’t belong in church, and a gun doesn’t belong in a bar. It just doesn’t,” he said.

He’s not the only Georgian to speak out against the expansion of concealed weapons into public spaces. Permissive concealed carry laws violate the shared expectation that public places will be safe environments free from guns and gun violence.1 According to a recent poll conducted for The Atlanta Journal-Constitution in January, 78% of Georgians do not support allowing firearms on college campuses and 72% oppose allowing guns in bars. Despite this clear message from the public, House Bill 875 passed the House of Representatives this week and is now headed to the Senate.

House Bill 875 would also weaken Georgia’s already lax requirements for obtaining a concealed weapon permit. For example, if the bill were enacted, a person who has been convicted of a misdemeanor for pointing a gun at another person could obtain a concealed carry permit.

The reality is that concealed handgun holders, who possess, at most, a very limited amount of firearms training, create new risks of intentional or accidental shootings. Members of the public who carry guns risk escalating everyday disagreements into public shootouts, especially in places where disputes frequently occur—in bars, at sporting events, or in traffic. A study from the Violence Policy Center on Texas’ permissive concealed carry law found that license holders were arrested for weapons-related crimes at a rate 81% higher than that of the state’s general population age 21 and older.

In addition to the expansion of guns in public, House Bill 875 would also allow individuals to sue local governments for enacting gun violence prevention laws. The local governments could be required to pay litigation expenses, attorneys fees, and damages in certain cases. These are only some of the many irresponsible provisions contained in the bill which the NRA touts as the “most comprehensive pro-gun reform legislation introduced in recent state history.”

Posted on Friday, February 14th, 2014

California has some of the strongest gun laws in the nation and these strong laws have had a significant role in keeping Californians safe. Over the past twenty years, California’s gun laws have contributed to a significant—56%—drop in California’s gun death rate. However, a radical Ninth Circuit Court of Appeals decision has put one of the state’s key laws in jeopardy. Yesterday, two conservative judges issued a decision that could potentially undermine a decades old law allowing law enforcement to have discretion over who is allowed to carry a hidden, loaded gun in public.

This law, like laws in several other states across the country, only allows law enforcement to issue a permit to carry a concealed loaded gun in public if the applicant can demonstrate “good cause” for the issuance of a permit—commonly called a “may issue” permitting system.

In California, counties can define “good cause” differently, and many require applicants to show that they are at a special risk of being targeted by criminals that is greater than the general population in order to demonstrate “good cause.” In this case, Peruta v. County of San Diego, the plaintiffs claim that the Second Amendment requires counties to issue permits to anyone who applies who claims a general need for self-defense, regardless of whether they have a special risk.

Since the controversial 2008 Supreme Court decision District of Columbia v. Heller, the gun lobby has flooded the courts with similar claims, which have nearly all been rejected. In fact, cases challenging similar “may issue” systems in New York, Maryland, and New Jersey have been rejected by three different federal appellate courts. In yesterday’s decision, however, two judges on a three judge panel of the Ninth Circuit decided that California’s good cause requirement must be interpreted to allow anyone who claims a general desire for personal self-defense in public to be issued a permit, contrary to other circuits’ decisions on this issue.

Posted on Monday, September 9th, 2013

The gun lobby has consistently tried to use the threat of lawsuits to scare communities away from enacting smart gun laws. One of the ways they have tried to do that is by claiming that laws prohibiting dangerous guns or ammunition magazines are inconsistent with the Takings Clause of the The Fifth Amendment to the United States Constitution. However, like other gun lobby claims about the Constitution, this claim is false.

The Takings Clause provides that the government shall not take “private property . . . for public use, without just compensation.”1 This provision requires the government to compensate property owners when it takes their property for public use. Most commonly, the Takings Clause has been raised in litigation related to real property (land) where the government is attempting to take or regulate the use of the property through zoning in order to benefit the general public.2

Laws banning dangerous guns—such as assault weapons—and large capacity ammunition magazines are not takings and do not require compensation. The Supreme Court and lower courts have long made a distinction between takings of property for public usage, which are takings, and legitimate exercises of state police power that result in a ban or limitation on property that is a threat to public safety or health, which are not takings.3

Recognizing this distinction, several courts have rejected Takings Clause challenges to laws banning the possession of dangerous weapons. For example, in Fesjian v. Jefferson, the District of Columbia Court of Appeals upheld a District of Columbia law that effectively banned machine guns.4 The court found that “the statute in question is an exercise of legislative police power and not of eminent domain” and therefore did not constitute a taking, even though it contained no “grandfather clause.”5 Similarly, the Eleventh Circuit in Gun South, Inc. v. Brady rejected a Takings Clause challenge to a temporary suspension on the importation of certain assault weapons, noting that the government in that case was acting “in a purely regulatory capacity and d[id] not profit from its actions.”6

Courts have also upheld such laws on the grounds that they do not deprive the owners of the entire value of these weapons. For example, in Quilici v. Village of Morton Grove, the court rejected a takings challenge to an ordinance banning handgun possession within a city, noting that “gun owners who wish to may sell or otherwise dispose of their handguns outside of” the city.7 In Silvera v. Lockyer, the Ninth Circuit upheld California’s assault weapons ban, noting that the banned weapons still retained some value.8

In short, because laws banning dangerous guns and ammunition seek to protect the public rather than to confiscate private property for public use, they are perfectly consistent with the Takings Clause of the Fifth Amendment.

See, e.g., Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984) (upholding the taking of property with compensation from lessors to transfer it to lessees in order to reduce the concentration of land ownership in the state of Hawaii); Berman v. Parker, 348 U.S. 26 (1954) (upholding the taking of property with compensation in a blighted area of Washington, D.C. in order to promote growth and public health). [↩]

See, e.g., Mugler v. Kansas, 123 U.S. 623, 668-669 (1887); Eggleston v. Pierce County, 64 P.3d 618, 623 (Wash. 2003) (“[C]learly, not every government action that takes, damages, or destroys property is a taking. ‘Eminent domain takes private property for a public use, while the police power regulates its use and enjoyment, or if it takes or damages it, it is not a taking or damaging for the public use, but to conserve the safety, morals, health and general welfare of the public.’”); Hunter v. Adams, 180 Cal. App. 2d 511, 523 (1960) (“If the injury is the result of legitimate governmental action reasonably taken for the public good and for no other purpose, and is reasonably necessary to serve a public purpose for the general welfare, it is a proper exercise of the police power to permit the taking or damaging of private property without compensation.”) (citing Chicago, B. & Q. R. Co. v. Illinois, 200 U.S. 561, 593-594 (1906) ) (other citations omitted). [↩]

877 F.2d 858, 869 (11th Cir. 1989). Courts have reached the same conclusion in other contexts where governments have banned dangerous things. See, e.g., Garcia v. Village of Tijeras, 108 N.M. 116, 123 (1988) (upholding a law banning pit bulls against a Takings Clause challenge because “[t]he ordinance, being a proper exercise of the Village’s police power, is not a deprivation of property without due process even though it allows for the destruction of private property . . . . [T]he Village has legitimately exercised the police power to curtail a menace to the public health and safety.”). [↩]

312 F.3d 1052, 1092 (9th Cir. 2002). Although the Silvera court did note that the assault weapons ban contained a grandfather clause, none of its analysis suggests that a grandfather clause is required in order to avoid a Takings Clause problem. The court held that “[i]n light of the substantial safety risk posed by assault weapons that prompted the passage of the [assault weapons ban], any incidental decrease in their value caused by the effect of that act does not constitute a compensable taking.” Id. at 1092. [↩]

Posted on Tuesday, August 27th, 2013

Thomas Barwick/Getty Images

Montana has become the second state to limit the freedom of medical professionals to discuss firearm ownership with patients. In 2013, Montana enacted a law that requires medical providers to treat patients regardless of whether they are willing to discuss their ownership, possession or use of firearms. This is a weaker version of a 2011 Florida law that threatens health care practitioners with discipline for routine inquiries about guns ownership. That U.S. District Court for the Southern District of Florida struck down that law as a violation of the First Amendment in June 2012.

A study on firearm storage counseling by family physicians found that 64 percent of participants who received verbal firearm storage safety counseling from their doctors improved their gun safety by the end of the study. Eight other states beyond Montana and Florida have introduced, but not enacted, similar legislation.

Want to know more? Check out other recent examples of extreme gun laws and policies in America on our Extremism in Action page.

Posted on Thursday, August 22nd, 2013

Last year, the Louisiana voters’ approved a constitutional amendment that made it easier for criminals to challenge the state’s gun laws in court. The amendment was the first in the nation to require courts considering state constitutional challenges to gun laws to apply “strict scrutiny,” the highest judicial standard. This year, five states introduced similar measures. The legislation failed in Illinois, Missouri, Oklahoma and South Dakota, but succeeded in Alabama where it will be put before the voters during the next election. These amendments are extremely dangerous because they require courts to use a nearly insurmountable standard for all firearms laws. Even the U.S. Supreme Court has not required courts to use the level of scrutiny required by these measures.

In fact, several months after approval of the amendment in Louisiana, an Orleans Parish judge overturned the conviction of a felon who had been found in possession of an AK-47. The judge ruled that the state law prohibiting a convicted felon from possessing a firearm did not pass the high standard imposed by the new constitutional provision. If voters approve the Alabama amendment, similar results are likely.

The moves by these states are especially alarming given that Louisiana has the second, and Alabama the third, highest gun death rate per capita in the United States. By making it nearly impossible to regulate firearms in these states, there is little hope that these tragic gun death rates will fall in the near future.

Want to know more? Check out other recent examples of extreme gun laws and policies in America on our Extremism in Action page.

Posted on Friday, August 16th, 2013

The Nelson, Georgia City Council passed a law in April of this year that requires every head of household to own a gun and ammunition. The ordinance provides exceptions that include felons, the disabled, and conscientious objectors to gun ownership due to religious beliefs. After the ordinance was enacted, the city’s police chief stated that the requirement was intended to be a warning to potential burglars.

In reality, guns in the home pose a far greater risk to those who live in the home than to would-be criminals. Living in a home where guns are kept increases the risk that someone in the home will become a victim of a homicide by as much as 170% and of suicide by up to 460%.1 And, the risk of dying from an unintentional shooting is 3.7 times higher for adults living in homes with guns.2 The Brady Center to Prevent Gun Violence has filed a lawsuit challenging the constitutionality of the ordinance.

Another Georgia community, the town of Kennesaw, enacted a similar ordinance in 1982. Towns in Maine and Utah attempted, but failed, to enact similar measures this year.

Want to know more about extreme gun policies in America? Check out our Extremism in Action page.

Douglas J. Wiebe, Firearms in U.S. Homes as a Risk Factor for Unintentional Gunshot Fatality, 35 Accident Analysis & Prevention 711, 713-14 (2003) (finding the relative risk of dying from an unintentional gunshot injury to be 3.7 times higher for adults living in homes with guns). [↩]

Posted on Friday, July 12th, 2013

Earlier this week, in a radical and confusing decision, a district court in Colorado ruled that the Second Amendment prevents a post office from keeping guns out of its parking lot. In Bonidy v. United States Postal Service, the plaintiff—joined by a radical right wing gun lobby group—challenged a postal service regulation prohibiting guns on post office property. The court held that while the plaintiff could not carry his gun inside the post office because it was a “sensitive place” under the Supreme Court’s landmark decision in District of Columbia v. Heller, he had a “right” to carry a gun in the post office’s parking lot.

The court’s ruling in this case is particularly surprising since the Tenth Circuit earlier this year flatly held in Peterson v. Martinez that “the Second Amendment does not confer a right to carry concealed weapons.” The court acknowledged that binding precedent, but also noted that the Tenth Circuit had not addressed a right to openly carry a firearm. The court went on to find that “the Second Amendment protects the right to openly carry firearms outside the home for a lawful purpose, subject to such restrictions as may be reasonably related to public safety.” What is odd about this conclusion—aside from the fact that nothing in Supreme Court or Tenth Circuit precedent compels it—is that this case simply did not involve the open carrying of firearms. Instead, the plaintiff sought a right to carry a concealed weapon onto post-office property, an issue that should have been squarely settled by Peterson. The court provides no explanation for this inconsistency.

The court then found—quite correctly—that the post office building itself was a sensitive place where restrictions on the right to bear arms were presumably justified. Indeed, Heller itself specifically mentions “government buildings” as one of the “sensitive places” where guns can be properly prohibited. READ MORE »

Posted on Tuesday, November 27th, 2012

Photo by Brett Duke, NOLA.com The Times-Picayune

On Election Day, the voters of Louisiana approved a ballot initiative that may make it easier for criminals to challenge the state’s gun laws in court. That NRA-sponsored initiative – the first of its kind in the nation – amended the state constitution’s right to bear arms provision to force courts considering state constitutional challenges to gun laws to apply “strict scrutiny,” the highest judicial standard.

The new provision is outrageous because it will require courts to review laws under a certain standard, rather than letting them decide for themselves what standard to use, as they traditionally have done. Strict scrutiny is often described as “strict in theory, fatal in fact,” because the vast majority of laws subject to strict scrutiny are found to be unconstitutional. Even the Supreme Court has not advocated for the use of strict scrutiny in cases evaluating laws under the Second Amendment. Requiring such a high standard could jeopardize even modest laws to reduce gun violence in Louisiana. This is especially alarming in a state that, in 2010, had the second highest number of firearm deaths per capita.